Robert Anderson on the Katie John Litigation

Robert T. Anderson has published “The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA” in the Arizona State Law Journal (PDF).

Highly recommended!!!!

Bob Anderson on Alaska Native Self-Government and Right to Hunt, Fish, and Gather

Robert Anderson has posted “Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA,” forthcoming in the Alaska Law Review, on SSRN.

The abstract:

The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.

Tribal and U.S. Response Briefs in Alaska Land into Trust Case

Response briefs filed in State of Alaska v. Akiachak Native Community;

Tribal Appellees Response Brief

USA Response Brief

Previous coverage here.

Alaska Governor Walker Spurns Alaska Natives and Pursues Challenge to Interior’s Decision to Take Land Into Trust for Alaska Natives

Here is the state’s opening brief in State of Alaska v. Akiachak Native Community:

2015-08-24 AK appeal brief vs Akiachak

Lower court materials here.

Two New Indian Law Articles in Alaska Law Review


Fate Control and Human Rights: The Policies and Practices of Local Governance in America’s Arctic
Mara Kimmel

The loss of territoriality over lands conveyed under the Alaska Native Claims Settlement Act had adverse impacts for Alaskan tribal governance. Despite policy frameworks that emphasize the value of local governance at an international, regional, and statewide level, Alaskan tribes face unique obstacles to exercising their authority, with consequences for both human development and human rights. This Article examines how territoriality was lost and analyzes the four major effects of this loss on tribal governance. It then describes two distinct but complimentary strategies to rebuilding tribal governance authority that rely on both territorial and non-territorial authority.

Traditional Cultural Districts: An Opportunity for Alaska Tribes to Protect Subsistence Rights and Traditional Lands
Elizaveta Barrett Ristroph

Alaska tribes have limited control over their traditional lands and waters. Tribes may increase their influence through a Traditional Cultural District designation under Section 106 of the National Historic Preservation Act. This designation does not stop development, but requires federal agencies to consult with tribes regarding potential development that may impact the district. The consultation right applies regardless of whether a tribe owns or has formally designated the district. In Alaska, where no Traditional Cultural Districts exist as of 2014, there is potential for designating large areas of land or water that correspond to the range of traditionally important species.

Federal Court Issues Stay Pending Appeal in Alaska Fee to Trust Case

Here are the updated materials in Akiachak Native Community v. Jewell (D.D.C.):

139 Alaska Motion for Stay

140 Akiachak Opposition

143 Alaska Reply

145 DCT Order

An excerpt:

For the foregoing reasons, the Court will GRANT IN PART Alaska’s motion for an injunction by enjoining the Secretary from taking any land into trust in Alaska, pending the outcome of the appeal. The Court’s ruling does not apply to the pre-existing exception for the Metlakatla Indian Community of the Annette Island Reserve or its members. 25 C.F.R. § 151.1; see also 79 Fed.Reg. 24,648, 24,649.

Materials on the merits here. Materials on the motion for reconsideration here.

New Scholarship on Employment Preferences and Statutory Exemptions for Alaska Native Corporations

Gregory S. Fisher & Erin “Faith” Rose have published “Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years After ANCSA” in the Alaska Law Review.

Here is the abstract:

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable the ANCs to promote the interests of their shareholders, Congress exempted ANCs from certain employment restrictions contained in Title VII of the Civil Rights Act, but did not exempt ANCs from other worker-protective legislation. In subsequent decades, courts reviewing the preferential practices of ANCs have often construed these statutory exemptions narrowly, thus exposing ANCs to liability under various anti-discrimination statutes. This Article argues that Congress never intended to subject ANCs to these pieces of worker-protective legislation, despite court holdings to the contrary. The Article proposes two possible solutions to this discrepancy: (1) congressional amendment of ANCSA to clarify and further limit the extent of ANC liability; and (2) judicial adoption of a two-part test which would consider employment policies giving preference to Alaska Native shareholders in light of Congress’s intent to protect such preferences.